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ELCDismissed· [2021] KEELC 2963 (KLR)

Manut Madut Anei Machot v Grace Wangari Kimani [2021] KEELC 2963 (KLR)

Environment and Land Court
10 June 2021
1,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a tenant's eviction case because controlled tenancy disputes must go to Kenya's Business Premises Rent Tribunal, not the court.

What this practically means

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Executive summary

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The plaintiff/applicant, a tenant on LR Nairobi/Block 3/303-High View Estate Phase 1, moved the court by Notice of Motion dated 29th October 2020 seeking temporary injunctive relief restraining the landlady/respondent from evicting, intimidating or harassing him pending hearing of a reference, together with an order directing the OCS Kenyatta National Hospital Police Station to ensure compliance. The application was supported by his affidavit and opposed by a replying affidavit of the defendant, a supplementary affidavit of a fellow tenant, and a preliminary objection dated 9th December 2020 contending that the tenancy, being a written tenancy for a term not exceeding five years, is a controlled tenancy under Section 2(1) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) and that only the Business Premises Rent Tribunal established under Section 11 of that Act has jurisdiction. The court agreed, holding that the tenancy agreement dated 5th March 2020 is a controlled tenancy and that Section 13 of the Environment and Land Court Act confers no jurisdiction over matters arising out of termination of tenancies. Applying the Owners of Motor Vessel 'Lilian' principle, the court upheld the preliminary objection and dismissed the notice of motion and the entire suit with costs to the defendant. In the alternative, the court held obiter that even assuming jurisdiction, the plaintiff, having failed to prove payment of rent, would not have met the Giella v Cassman Brown threshold for a temporary injunction.

Key legal issues

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01

Jurisdiction of the ELC over a controlled tenancy dispute

Holding

The ELC has no jurisdiction to determine matters arising out of termination of controlled tenancies; such disputes belong to the Business Premises Rent Tribunal under Section 11 of Cap 301.

Reasoning

The tenancy between the parties was created by a written tenancy agreement dated 5th March 2020. Applying the definition of 'controlled tenancy' in Section 2(1) of Cap 301, the court found the tenancy was a controlled tenancy. Relying on the Owners of Motor Vessel 'Lilian' principle, the court held it had to down tools once it found it lacked jurisdiction, and upheld the preliminary objection.

p. 2
02

Temporary injunction threshold (obiter)

Holding

Even assuming jurisdiction, the applicant would have failed because he did not prove he had fulfilled his obligation to pay rent.

Reasoning

The court set out the Giella v Cassman Brown principles as the guide had jurisdiction existed. It was incumbent on the plaintiff to prove he had paid rent as and when it fell due; he adduced no evidence in support of his averments and therefore failed to establish a prima facie case with a probability of success.

p. 3

Legal principles established

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  • A court must halt proceedings the moment it finds it lacks jurisdiction.
  • Disputes concerning controlled tenancies under Cap 301 fall within the exclusive jurisdiction of the Business Premises Rent Tribunal.

Court orders

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  1. 1.The preliminary objection dated 9th December 2020 is upheld.
  2. 2.The Notice of Motion dated 29th October 2020 and the entire suit are dismissed with costs to the defendant/respondent.

Authorities

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Legislation

  • Environment and Land Court ActSection 13(4)
  • Environment and Land Court ActSection 13
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 12(4)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 2(1)
  • Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)Section 11

Cases cited (4)

  • Dhirajlal J Shah & Another vs Vijay Amritlal Shethia
    [2018] eKLR
  • Giella vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Tecno Holdings Ltd & 5 Others vs NSSF Board of Trustees
    [2018] eKLR
  • Owners of Motor Vessel "Lilian" (S) vs Caltex Oil Kenya Ltd
    [1989] KLR 1
Jurisdiction invoked
Section 13(4) of the Environment and Land Court Act and Section 12(4) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Manut Madut Anei Machot v Grace Wangari Kimani [2021] KEELC 2963 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2963/eng@2021-06-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.